Appeal No. 2001-1072
Application No. 09/087,141
challenged the examiner’s conclusion that “[b]y definition the 0th order of diffraction is the specular
reflection of the probe beam” by referring to Rogers ‘470 which discloses “in Col. 7, line 65 to Col.
8, line 1, the zeroth order is spatially filtered and the +1 and -1 diffracted orders are used to generate
measurements” (brief, page 6; answer, page 6). The examiner has not presented any evidence or
convincing arguments to rebut the appellants’ challenge. Thus, the obviousness-type double
patenting rejections of claims 1 through 13, 15 through 19, 21 through 34 and 45, and the
obviousness rejection of claims 1 through 34 and 45 are reversed because Rogers ‘470, Nelson and
Rogers ‘811 neither teach nor would have suggested to one of ordinary skill in the art a reflected
probe beam.
The obviousness rejection of claims 35 through 44 and 46 is sustained because these claims
are not limited to a reflected probe beam. As correctly noted by the examiner, these claims are
directed to either a diffracted probe beam or a reflected probe beam (answer, page 8).
DECISION
The decision of the examiner is affirmed as to the obviousness rejection of claims 35
through 44 and 46, and is reversed as to all of the other rejections of record. Accordingly, the
decision of the examiner is affirmed-in-part.
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